Samuel C. Stretton.
Avoid a conflict and refer a husband and wife to another attorney.
A husband and wife came into my office. She had given a statement to the police about some sexual abuse by the husband. The husband has advised me that she wants to withdraw the charges because they are not true. The district attorney wants her to go before a grand jury. Can I advise her to plead the Fifth Amendment?
It is an interesting ethical question, but can have some serious consequences if a lawyer is not careful. The real question here is, who does the lawyer represent? That is a critical question.
For instance, if the lawyer was representing the husband and then asked the wife/victim to plead the Fifth Amendment, it would be a serious potential violation of Rule 8.4(d), Conduct Contrary to the Administration of Justice. A lawyer cannot advise someone he doesn’t represent such as a victim of a crime to take steps to avoid having to testify. A lawyer can’t tell a victim of a crime to plead the Fifth Amendment if the lawyer is representing the criminal defendant.
In fact, Rule 4.3 of the Rules of Professional Conduct clearly states a lawyer should only tell an unrepresented third person that the lawyer doesn’t represent them and they should seek counsel. Other than that, the lawyer should not give them advice.
Therefore, if the husband and wife come in and the wife wants to recant her statement and the lawyer is giving the wife advice to go to the grand jury to plead the Fifth Amendment, the lawyer should only be giving that advice if the lawyer represents only the wife and the advice is what is in the wife’s best interest. It may be in the wife’s best interest if, in fact, the wife had lied about the husband since there would be a very valid basis for the assertion of the Fifth Amendment because the wife would be exposed to criminal charges for false reports and things of that nature.
On the other hand, if the lawyer is looking out for the husband’s interest then, of course, telling the wife to plead the Fifth would fall into the problems of giving advice to someone the lawyer doesn’t represent. In this situation, clearly a lawyer can’t represent both the husband and wife. It doesn’t make a difference if they come in and say they made up, reconciled, etc. Under these facts, the lawyer cannot represent both of them. That would be a direct conflict under both Rule 1.7 or under Rule 1.9 of the Rules of Professional Conduct.
The only way a lawyer can handle this situation is to advise the husband and wife that he is only representing the wife. He would have to tell the husband to stay out of the room or to leave. That could be even more complicated if the husband is agreeing to pay the wife’s legal fees. Of course, the husband or any third party has a right to pay legal fees, but they cannot control or direct the representation and cannot be privy to the confidential relationship. This is allowed under Rule 1.8.
But, if the lawyer has both husband and wife sitting in the office and talks to the wife and the husband, most likely both are going to believe the lawyer is representing them and both will feel free to talk to the lawyer. That’s a classic case of where the lawyer is potentially going to have to disqualify themselves. The reason is the lawyer is going to have confidential information on both and if their interest became adverse, the lawyer has to get out of the case.
Therefore, the lawyer must make it very clear to both parties who he represents and have the other party leave. The lawyer does not want to talk to both because that could waive the attorney-client privilege. Maybe issues of marital privilege might be present, but the lawyer has to focus in on who he is representing and make sure that the attorney-client relationship is maintained properly. The lawyer has to make sure no one is confused or believing that they have the benefit of the attorney-client confidentiality during this time period.
The lawyer should send letters to everyone memorializing any potential conflicts and who he represents. The bottom line is, if the lawyer doesn’t do the above, the lawyer could be sharply criticized by the district attorney or end up before the Office of Disciplinary Counsel on a conflict where perhaps the commonwealth would be prejudiced or the lawyer took advantage of one party over another under Rule 4.3.
In this modern age of practicing law, a lawyer has to be very sensitive to conflicts. Whether it’s in this kind of situation or just clients appearing where they are the driver/passenger in a civil case or co-conspirators on a criminal case. If conflict of interest issues are not properly handled, a lawyer could be conflicted out on both. Therefore, the answer to the question is if he already met with both of them, the best policy would be to refer each of them to separate counsel for advice.